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YORKTOWNE PAPER MILLS AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (07/17/81)

decided: July 17, 1981.

YORKTOWNE PAPER MILLS AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CHARLES H. BEARD, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Charles W. Beard v. Yorktowne Paper Mills, Inc., No. A-76834.

COUNSEL

W. Jeffrey Sidebottom, Barley, Snyder, Cooper & Barber, for petitioners.

Wilson H. Oldhouser, for respondent, Charles H. Beard.

Judges Rogers, Blatt and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 60 Pa. Commw. Page 609]

In 1967 Charles H. Beard injured his back in the course of his employment as a laborer in the Yorktowne Paper Mills, Inc. During the eleven years following, the claimant underwent repeated surgical procedures to his back and with the exception of short periods when he attempted without success to return to work, received workmen's compensation benefits for total or partial disability pursuant to an agreement and six supplemental agreements entered into with the employer.

In 1978 the employer sought to suspend compensation alleging that the claimant was no longer totally disabled but could return to work and that there were positions available suited to his continuing physical limitations. Following two hearings on these issues, a referee held that the employer had not proved the availability of suitable work. The Workmen's Compensation Appeal Board affirmed the referee's order. This appeal followed.

The general rule, first enunciated in Barrett v. Otis Elevator Co., 431 Pa. 446, 246 A.2d 668 (1968) and Petrone v. Moffat Coal Co., 427 Pa. 5, 233 A.2d 891 (1967) is that an employer seeking to modify a workmen's compensation agreement and asserting that a claimant's disability is no longer total has the

[ 60 Pa. Commw. Page 610]

    burden to prove that such disability has been reduced and that work is available which is within the claimant's capability. Stillman Automotive Center, Inc. v. Workmen's Compensation Appeal Board, 55 Pa. Commonwealth Ct. 247, 248, 422 A.2d 1233, 1234 (1980).

On the issue of available work, the employer elicited the testimony of Keith A. Daubert, a rehabilitation specialist and counselor, that six specified employment positions suited to the claimant's physical limitations were available in the York, Pennsylvania area near his residence. The positions were: car wash attendant, industrial security guard, janitorial service (two jobs), laborer with an automobile rustproofing concern, and apprentice cigar wrapper.

The claimant's treating physician, Dr. J. J. Danyo, was deposed by the employer and testified on direct examination that the claimant was capable of performing any of the six specified jobs. On cross-examination Dr. Danyon retreated from this unqualified conclusion and indicated that a more particularized analysis of the duties encompassed by several of the job descriptions might reveal their lack of suitability. For example, Dr. Danyon agreed with the claimant's counsel that the car wash attendant's position, involving repeatedly climbing into and out of automobiles including compact and subcompact models might have "too much bending and twisting associated with it." The same reservation was expressed with respect to the automobile rustproofing position which also involved repeated bending.

At a later hearing the claimant testified that he had attended interviews and had filed applications for three of the six positions but that the applications had been, in each case, rejected. In addition, his application for one of the janitorial positions was not accepted because the ...


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